India: Effects of Tariffs and Nontariff Measures on U.S. ... - USITC

U.S. <strong>and</strong> other global seed firms state that it remains difficult to obtain patent rights <strong>of</strong>
any significant commercial value for biotechnology inventions because the law excludes
plants from protection. 33 They also have expressed concern over the patent law’s broad
compulsory license provisions <strong>and</strong> stringent requirements for the identification <strong>of</strong> the
source <strong>and</strong> geographical origin <strong>of</strong> any biological material contained in an invention. 34
Major differences in plant-related patent provisions in <strong>India</strong> <strong>and</strong> the United States are set
forth below (table 9.2).
TABLE 9.2 Major differences between <strong>India</strong>n <strong>and</strong> U.S. plant-related patent provisions
<strong>India</strong> United States
Patents available for plants, seeds, <strong>and</strong> varieties No Yes
Patents available for microorganisms <strong>and</strong> certain biotechnology processes Yes Yes
Compulsory license may be imposed three years after patent grant where invention has
not been worked on domestically, where reasonable requirements <strong>of</strong> the public have not
been satisfied, or where invention is not available at a reasonably affordable price
M<strong>and</strong>atory identification <strong>of</strong> source <strong>and</strong> geographical origin <strong>of</strong> biological material in the Yes No
invention
Sources: <strong>India</strong> Patents Act, 1970 (2005), §§ 3, 10, 84; U.S. Plant Patent Act, 35 U.S.C. § 161; Utility Patent
Statute, 35 U.S.C. § 101 (2007).
Notwithst<strong>and</strong>ing these concerns, global firms have patented seed technologies in <strong>India</strong>. 35
According to online records <strong>of</strong> the <strong>India</strong>n Patent Office, Monsanto has the largest number
<strong>of</strong> recently granted patents for seed technologies (table 9.3). For example, Monsanto has
obtained a patent for “Cotton Event MON15985,” the genetic sequence underlying the
second generation <strong>of</strong> its biotech cotton product (Bollgard II). Patents for biotechnology
methods <strong>and</strong> products, as well as seed coatings <strong>and</strong> treatments, also have been issued to
Bayer <strong>and</strong> Syngenta. However, neither DuPont/Pioneer nor Dow Agroscience appear to
have patented any seed technologies in <strong>India</strong> recently, <strong>and</strong> the same is true <strong>of</strong> such large
<strong>India</strong>n seed companies as Rasi Seeds, Mahyco, <strong>and</strong> Nuziveedu.
TABLE 9.3 <strong>India</strong>: Patents granted to U.S. <strong>and</strong> other global seed firms for biotechnology, 2007–09
Recent
seed
Company
patents Subject matter
Monsanto 17 Biotechnology methods <strong>and</strong> processes; genetic sequences that confer valuable
traits including insect resistance, herbicide tolerance, improved germination rates,
<strong>and</strong> increased oil levels; <strong>and</strong> seed treatments.
Bayer 13 Biotechnology methods <strong>and</strong> processes; genetic sequences that confer valuable
traits such as insect resistance, reduced seed shattering, stress tolerance, <strong>and</strong>
increased starch content; <strong>and</strong> methods for producing transgenic cotton <strong>and</strong> rice.
Syngenta 7 Biotechnology methods <strong>and</strong> processes; seed coatings <strong>and</strong> treatments.
Source: <strong>India</strong>n Patent Office.
Yes
No
33 BIO, written submission to the Commission, June 26, 2009, 3; industry representative, telephone
interview by Commission staff, March 30, 2009; <strong>and</strong> industry representative, e-mail message to Commission
staff, June 19, 2009.
34 According to BIO, the “special disclosure requirements impose unreasonable burdens on patent
applicants, subjecting valuable patent rights to great uncertainty.” BIO, written submission to the
Commission, June 26, 2009, 3; industry representative, telephone interview by Commission staff, March 30,
2009; <strong>and</strong> industry representative, e-mail message to Commission staff, June 19, 2009.
35 The Controller General <strong>of</strong> Patents, Designs, <strong>and</strong> Trademarks (<strong>India</strong>n Patent Office) has online search
facilities that permit the searching by applicant name <strong>of</strong> “new records” <strong>of</strong> granted patents. See <strong>India</strong>n Patent
Office, Public Search for Patents, http://ipindia.nic.in/patsea.htm (accessed July 12, 2009). Although date
parameters for new records are not provided, they appear to include patents granted since 2007. Patents
related to fertilizers, pesticides, <strong>and</strong> other agricultural chemicals are not included in the totals reported here.
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